Omhra spring conference 2011 case law update
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OMHRA Spring Conference 2011 Case Law Update. Michael Kennedy and Stephen Goodwin . Legislation. AODA Update. What is the AODA? Fundamental purpose to make Ontario fully accessible by 2025 Five accessibility standards customer service - in force

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OMHRA Spring Conference 2011 Case Law Update

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OMHRA Spring Conference 2011Case Law Update

Michael Kennedy and Stephen Goodwin


Legislation


AODA Update

  • What is the AODA?

    • Fundamental purpose to make Ontario fully accessible by 2025

    • Five accessibility standards

      • customer service - in force

      • built environment – Standard approved May 2010 – awaiting MCSS to pass regulation

      • transportation; information and communications; and employment – rolling into one standard - review just ended October 16, 2010


AODA Update

  • Customer Service Standard

    • In force for public sector as of Jan 1, 2010; private sector and not-for-profit by January 1, 2012

  • Can apply now to private sector if acting as agent or third party for public sector organization

  • Establish policies, practices and procedures based on principles:

    • goods and services provided in manner that respects dignity;

    • provision must be integrated to enable disabled person to use goods or service;

    • equal opportunity for disabled persons to use and benefit from goods or service


AODA Update

  • Customer Service Standard cont’d

    • entrance accompanied by guide dog or other animal, and to keep the animal with them, and if the animal is otherwise excluded by law, to ensure that other measures are available

    • assistive devices, notice of temporary disruptions, feedback processes and complaint procedures

    • training for staff

    • Feedback process

    • accessibility report

    • time & resources!


AODA Update

  • Employment Accessibility Standard

    • now included in one standard with Information and Communication as well as Transportation

    • Review ended October 16, 2010

    • Employment Standard sets out specific requirement for the recruitment, assessment, selection, hiring, retention and separation and termination from employment

    • Will apply to all employers in Ontario


When Deadlines?

  • Large Public: January 1, 2014

  • Small Public: January 1, 2015

  • More information @ www.hicksmorley.com


Bill 160 – Occupational Health & Safety Amendment Act, 2011

  • New training and certificate requirements


Bill 122 – Broader Public Sector Accountability Act, 2010

  • Not apply to municipalities, however…


WSIB Work Reintegration Policies

Responsibilities of Workplace Parties

More active WSIB role

RTW Plan expectations

“Duty to Accommodate”

Penalty system if failure in RTW obligations

Work Transition Services

NEER Window – to FOUR years starting with 2008 DOA


The Budget

  • It’s all about the politics


NRA60 for Fire Fighters

  • Expect a bill passed this Spring

  • It will be messy


Arbitration


GTAA Decision

  • Divisional Court

  • Makes Shime’s Decision legitimate


GTAA

  • Facts


GTAA

  • Future Loss

  • Mental Distress

  • Punitives


George Brown v. OPSEU

  • Discharge for incompetence


Sheridan College v. OPSEU

  • Discharge for unauthorized and inappropriate use of employer’s computer network


Cambridge Towel

  • Discharge of 17 year employee for performance issues


Hendrickson Springs v. USW

  • Contracting Out Grievance


Carillion Services v. CUPE

  • Dispute over documentation to be removed from file


Chatham-Kent v. ONA

  • Post Age 64 benefits issue


Air Canada NRA60Case

  • Federal Court grant judicial review of CHRT Decision


Interest Arbitration

  • Participating Hospitals v. SEIU

  • ATB of 2%


Employment Law


Van Mensel v. Walpole Island First Nation

  • Contract interpretation issue


Russo v. Kerr

  • Motion for summary judgment related to constructive dismissal


Beggs v. Westport Foods

  • Lawyer letter ends employment relationship


Serbanescu v. Spam Manufacturing

  • Reasonable notice


Love v. Acuity Investment

  • Reasonable notice


Robertson v. Manitoba Keewatinowi

  • Vicarious liability over employee alleging sexual assault


Employment Standards


Frustration of Contract under the ESA

  • Unionized employees seeking severancewhen employer has not taken steps to terminate

    • severance

    • notice

    • time limits


St. Joseph’s General Hospital and ONA

134 L.A.C.(4th) 86. Luborsky dismisses grievance - insufficient medical evidence

148 L.A.C.(4th) 326. New medical evidence. Randall finds meets definition of severance “unable to continue employing the employee”

not an issue that cba does not have deemed termination clause and allowed for continued seniority when absent due to illness


H.E. Vanhatter Ltd.

169 L.A.C. (4th) 400 (Reilly)

5 year deemed termination clause meant employee absent less than 5 years, not entitled to severance. Employee absent more than 5 years entitled to severance due to frustration.


H.E. Vanhatter Ltd.

“On the question of pay in lieu of notice: the collective agreement provides the notice and it is for a period of five years. Therefore Mr. St. Pierre is entitled to receive his severance pay and not his pay in lieu of notice and I so find.”


Tembec Enterprises Inc.

92 C.L.A.S. 350 (Harris)

following LMR, employee started working for another employer

Employer said “Quit”

Harris said severed/terminated due to frustration and entitled to both severance and pay in lieu of notice

Divisional Court overturned on the basis no evidence employee couldn’t be accommodated


William Osler Health Centre and ONA

179 L.A.C. (4th) 143 (Shime)

bundle of benefits under the cba not a greater right or benefit to severance

amount of severance owing not decided


Cargill

[2010] O.L.A.A. No. 617 (Jesin)

[2010] O.L.A.A. No. 679 (Chauvin)

[2010] O.L.A.A. No. 680 (Chauvin)

[2010] O.L.A.A. No. 681 (Chauvin)


Cargill

Chauvin – dismisses preliminary objection on timeliness

Does not decide issue of termination pay

Jesin – dismisses preliminary objection on timeliness

“It is not entirely clear to me that the grievor is entitled to termination pay”


Emrick Plastics

[2010] O.L.A.A. No. 575 (Crljenica)

Employee injured 2000, modified work until 2002

Off since 2002

Awarded NEL 2003

2005 LMR declined – not employable

Grievance filed 2009

Dismissed – frustrated in 2005 – well beyond cba and ESA time limits


Human Rights


De Abres v. Humber Institute of Technology

  • Accommodation of disabled employee with cancer


ATU v. City of Mississauga

  • Arbitration award regarding alcoholic employee


Watson v. CAW

  • HRTO decision regarding retirement package offer


Ottawa Hospital v. CUPE

  • Arbitration decision regarding attendance management


OPSEU v. Seneca College

  • Religious leave issue


McIntosh v. Metro Aluminum

  • “Sexting” – text message flirting case


Ford v. Nipissing University

  • Was response to human rights violation adequate?


Privacy


R. v. Cole Court of Appeal Case

  • Need to review policy regarding computers


Jones v. Tsiga

  • No tort of invasion of privacy


Social Media


Lougheed Imports v. UFCW

  • BCLRB case regarding face book comments


Windsor-Essex Catholic District School Board v. Lentini

  • Defamation arising from Face Book comments


Pay Equity

  • Are you compliant?

  • Really?

  • Seriously?


Pay Equity

  • Commission more active

  • Spot Audits

  • Unions going after it


Interest Awarded

  • January 1, 1990 Compliance Date

  • Interest Rate 12%

  • No time limits


OMHRA Spring Conference 2011Case Law Update

Michael Kennedy and Stephen Goodwin


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